Yang Linhai v Cheng Minglei and Sun Nian and Sobey Chisewe

### Preamble
1
HH 681-25
HCH 10450/15
Ex Tempore
YANG LINHAI
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Ex Tempore

YANG LINHAI
versus
CHENG MINGLEI
and
SUN NIAN
and
SOBEY CHISEWE

HIGH COURT OF ZIMBABWE
DEME J
HARARE, 28 and 30 October 2025.

Opposed application

T J Madotsa, for the applicant
T Magwaliba, for the 1st respondent
No appearance for the 2nd and 3rd Respondents.

DEME J: The Applicant approached this court seeking to be declared the lawful owner of all shares in respect of the company, namely Timsite Enterprises (Pvt) Ltd. More particularly, the Applicant is praying for the following relief:

“1. The applicant Yang Linhai be and is hereby declared to be the sole lawful owner and holder of all of the 2000 issued shares in Timsite Enterprises (Pvt) Ltd.
2. The respondents to pay costs of suit jointly and severally with one paying for the others to be absolved.”

The Applicant filed the notice of withdrawal of the matter on the day of the hearing of this matter. Adv Magwaliba argued that the matter, once set down, cannot be withdrawn without the leave of the court or the consent of the opposite party. He prayed for the dismissal of the application. He referred the court to the decision of *Meda v Sibanda*, where the Constitutional Court held that:

“While parties may at any time before a matter is set down, withdraw a matter, with a tender of costs the same does not hold true for a matter that has already been set down for hearing. Once a matter is set down, withdrawal is not there for the taking.

The applicable principles are set out in Erasmus “Superior Court Practice” B1-304. A person who has instituted proceedings is entitled to withdraw such proceedings without the other party’s concurrence and without leave of the court at any time before the matter is set down. The proceedings are those in which there is lis between the parties one of whom seeks redress or the enforcement of rights against the other. An application for appropriate relief on the grounds of alleged violation of a right is such a proceeding.

Once a matter has been set down for hearing it is not competent for a party who has instituted such proceedings to withdraw them without either the consent of all the parties or the leave of the court. In the absence of such consent or leave, a purported notice of withdrawal will be invalid. The court has a discretion whether or not to grant such leave upon application. The question of injustice to the other parties is germane to the exercise of the court’s discretion. It is, however, not ordinarily the function of the court to force a person to proceed with an action against his will or to investigate the reasons for abandoning or wishing to abandon one.

See - *Abramacos v Abramacos* 1953(4) SA 474(SR);
Pearson & Hutton NNO v Histeroth 1967(3) 591(E) at 593D, 594H
Protea Assurance Co Ltd v Gamlase 1971(1)SA 460(E) at 465G
Huggins v Ryan NO 1978(1) SA 216(R) at 218D
Franco Vignazia Enterprises (Pty) Ltd v Berry 1983(2) SA 290(C) at 295H
Levy v Levy 1991(3) SA 614(A) at 620B
HERBSTEIN & Van Winsen “The Civil Practice of the High Courts and Supreme Court of Appeal of South Africa” (5ed) p 750”

Adv *Magwaliba* prayed for an order of costs on an attorney and client scale. He submitted that the Applicant waited for the last minute to withdraw the matter, which prejudices the 1st Respondent and the court, who were forced to read the file only to discover that the matter was withdrawn.

Mr. *Madotsa* submitted that the Applicant was now making an application for the withdrawal of the matter. This application was resisted by Adv *Magwaliba* who submitted that the application is improperly before the court as the Applicant did not seek leave of the court before filing the notice of withdrawal. He further submitted that the application is also defective on the basis that the Applicant ought to have sought consent of the 1st Respondent before withdrawing the matter. On this basis, he prayed for the dismissal of the application for withdrawal. Reference was made to the case of Meda v Sibanda supra. Adv Magwaliba also made reference to the case of Earthfix Global (Pvt) Ltd v Kuzvipira Housing Co-operative Ltd and Ors\(^2\).

Mr Madotsa submitted that the withdrawal has been motivated by the defect in the founding affidavit raised by the 1\(^\text{st}\) Respondent through Heads of Argument filed in 2024. The first Respondent raised a point in limine to the effect that the founding affidavit does have computer generated date and hence was improperly commissioned. Mr Madotsa further submitted that the delay in withdrawing the matter was necessitated by the application for joinder in case number HCH3096/25 where interested parties sought to be joined to the present application. Mr Madotsa advised the court that the application for joinder was deemed abandoned on 23 October 2025. According to Mr Madotsa, the Applicant then considered the withdrawal of the matter after the abandonment of the application for joinder. Mr. Madotsa further argued that the matter cannot be dismissed since the matter is not properly before the court on the basis of the defective affidavit. He prayed for an order that the application be struck from the roll with costs.

Responding to the issue of whether the application is properly before the court on the basis of a defective founding affidavit, Adv Magwaliba argued that the matter is properly before the court. He argued that the defect has not yet been determined by the court. Hence, he contended that the matter remains properly before the court until determined otherwise. He referred the court to the case of Meda v Sibanda supra.

The issues that exercise my mind are:

A. Whether the application for withdrawal may be granted.
B. Whether the present application must be dismissed.
C. Whether the Applicant must bear the costs of suit on an attorney and client scale.

In my view, it is improper for the party to withdraw the matter that has been set down. Reference is made to the case of Meda v Sibanda supra. A withdrawal at this stage can only be done with the consent of the parties and with the leave of the court, as per the case of Meda v Sibanda

\(^2\) HH255/25.
 supra. For this reason, the oral application made by Mr. Madotsa was improperly before the court. He withdrew the matter first before seeking the leave of the court. He did not follow the correct order of procedures. For this reason, the oral application for withdrawal is hereby dismissed.

The next issue for determination is whether the present application must be dismissed. In motivating the court to dismiss the application, Adv Magwaliba did not give the reasons for his belief that the present application must be dismissed. Unlike in *Meda v Sibanda supra*, the party seeking the dismissal of the matter motivated the court with reasons for the dismissal. In that matter, the court was urged to look at the reasons for the dismissal. In the present application, Adv Magwaliba did not advance any submission for the merits or otherwise of the present application in order to urge the court to dismiss the matter. He simply submitted that if the matter is dismissed, the Applicant will not be able to come back to court with the same application. That is not a reason which may be used to justify the dismissal of the application. In the absence of the reasons for the dismissal, I am hesitant to dismiss the application. A dismissal will shut the door of access to justice for any party. Reference is made to the case of *Nhari v Robert Gabriel Mugabe and Others*\(^3\), where, in paragraph 45, the Supreme Court opined as follows:

“\(^[45]\) I am inclined to agree with the appellant that the order dismissing the entire claim was, in the circumstances, improper. The court had found that it had no jurisdiction to entertain the claims because such claims lay in the province of labour. Having so determined, there was therefore nothing that remained before the court. There was nothing further to dismiss. In *Edward Tawanda Madza & Others v (1) The Reformed Church in Zimbabwe Daisyfield Trust (2) The Reformed Church of Zimbabwe (3) Naison Trirvavi (4) The Dutch Reformed Church SC 71/14* this Court remarked as follows:-
“It is a contradiction in terms to dismiss a matter on the twin bases that it not urgent and that the applicant has no *locus standi* for the latter basis indicates that a decision on the merits of the application has been made in which event the applicant is barred from placing the matter on the ordinary roll for determination. The effect of the dismissal on the latter basis is that the applicant is put out of court and is deprived of his right to have the matter properly ventilated in a court application or trial. Where, however, the matter is struck off the roll for lack of urgency, the applicant, if so advised, may place the matter on the ordinary roll for hearing.” (at pp 8 – 9 of the judgment)”

In my view, an order that the matter be struck from the roll may be appropriate in the circumstances, given the reason for the purported withdrawal.

\(^3\) SC161/20.


With respect to costs, it is apparent that this matter was lodged in 2015. The first Respondent’s opposing affidavit filed in 2023 did not raise the issue of the defective founding affidavit. The jurisprudence of *Mandishaika v Sithole* was still novel at the time when the founding affidavit was filed. The present application was filed on 30 October 2015 while the decision of *Mandishaika v Sithole supra* was delivered 15 days before the filing of the present application. The decision of *Mandishaika v Sithole* is the founding jurisprudence on the question of the defective founding affidavit raised. The defects on the founding affidavit were not raised in the first set of Heads of Argument filed in 2023 on behalf of the first Respondent. This issue emerged for the first time in the second set of first Respondent’s Heads of Argument filed in 2024. For this reason, I am of the view that the Applicant may not be punished with punitive costs for the founding affidavit which was filed a few days after the introduction of new jurisprudence on the effects of improperly commissioned affidavits. Costs on an ordinary scale are appropriate in the circumstances.

Textual authorities and case law have dealt with the issue of costs in a variety of ways. Hebstein and Van Winsen, have this to say, in relation to costs:

“The award of costs in a matter is wholly with the discretion of the Court, but this is a judicial discretion and must be exercised on grounds upon which a reasonable person could have come to the conclusion arrived at. The law contemplated that he should take into consideration the circumstances of each case, carefully weighing the various issues in this case, the conduct of the parties and any other circumstances which may have a bearing upon the question of costs and then make such order as to costs as would be fair and just between the parties…”

In considering whether to grant costs on an attorney and client scale, the court is guided by various factors. A.C Cilliers, postulated that the following are some of the key issues that must be available before an order for costs on a higher scale is granted by the court:

“(a) Vexatious and frivolous proceedings.
(b) Dishonesty or fraud of litigant.
(c) Reckless or malicious proceedings
(d) Litigant’s deplorable attitude towards the court
(e) Other circumstances.”

4 HH798/15.

5 *Civil Practice of the High Court and the Supreme Court of Appeal of South Africa, 5th Ed, Vol 2 p954*

6 *The Law of Costs, 2nd ed, p66.*
 The above issues were also captured in the case of *Mahembe v Matambo*<sup>7</sup>. I have not been favoured with the arguments that the present application is vexatious and frivolous. Adv Magwaliba did not advance any submission that the Applicant’s conduct is deplorable nor did he contend that the present application is malicious or reckless. Issues of Applicant’s dishonesty or fraud were not placed before my attention. Further, in the case of *Nel v Waterberg Landbouwerkers Kooperative Vereeniging*<sup>8</sup>, the following was stated in relation to costs on an attorney and client scale:

“The true explanation of awards of attorney and client costs not expressly authorised by Statute seems to be that, by reason of special consideration arising either from the circumstances which give rise to the action from the conduct of the losing party, the court, in a particular case considers it just, by means of such an order, to ensure more effectually that it can do by means of a judgment for party and party costs that the successful party will not be out of pocket in respect of the expenses caused to him by the litigation. Theoretically, a party and party bill taxed in accordance with the tariff will be reasonably sufficient for that purpose. But in fact a party may have incurred expense which is reasonably necessary but it is not chargeable in the party and party bill. See Hearle and McEwan v Mitchell’s Executor (1922 TPD 192), Therefore in a particular case the Court will try to ensure, as far as it can, that the successful party is bound to pay to his own attorney and the amount of an attorney and client bill which has been taxed against the losing party…”

For the aforesaid reasons, I hold the view that the costs on an attorney and client scale are not suitable in the circumstances. It is consequently ordered as follows:

A. The oral application for the withdrawal of the matter be and is hereby dismissed.
B. The application be and is hereby struck from the roll with costs.

**DEME J:…………………………………………**

*Madotsa and Partners*, Applicant’s legal practitioners.
Magwaliba and Kwirira, first respondent’s legal practitioners

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<sup>7</sup> HB13/03

<sup>8</sup> 1946 AD 597 at 607
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